We receive questions at our office on a weekly (sometimes daily) basis
about Legal Separation in Texas. Most people have talked with friends
and family in other states, or have heard in the media about spouses being
“legally separated,” and want to find out more. Many folks
need time apart, but don’t want to take the big step of getting
divorced in hopes of reconciliation after a cooling off period or counseling.
In Texas, we do not have a “legal separation.”
This, however, does not mean that spouses needing time apart don’t
have any options. The question that we end up asking these people is why
they need the legal separation or what benefit they are seeking by formalizing
Most of the time, responses fall into one of two categories, both involving
the need for some rules. The first is the need for rules about the children
while the parties are separated and the second involves the need for rules
about the use of property and/or payment of debt and expenses wile the
parties are separated.
Rules regarding the kids include setting up with whom they will live during
the separation, setting up a possession schedule, providing for support,
medical insurance and so on. Regarding property, parties often want something
in writing about who will get the use of the family residence, particular
vehicles and who will pay the mortgage, expenses, vehicle loans, credit
card debt, and so on. Often, regarding property, the parties also want
to provide that neither party will expend any of the parties’ property,
or incur any new debt, except for ordinary living expenses, until they
figure out what they are going to do long-term.
The easiest solution to the need for rules in either category — kids
or property — is for one, or both, parties to file a Petition for
Divorce and request that Temporary Orders be entered. If the parties already
know what they want to do, then they can file a simple Petition and have
the Court enter Agreed Temporary Orders, which don’t even require
a hearing. While this approach does involve the perceived stigma of having
filed for divorce, the Court is not going to force the parties to go through
with the divorce just because it is filed. If the parties reconcile, it
is a very simple process to dismiss the divorce proceeding.
This method does provide a solution, but it isn’t necessarily a longterm
solution. Most Courts have a docket control plan in place that will require
that some action be taken in the case on a regular basis, or the Court
will dismiss the case (and any Temporary Orders) on it’s own. Usually
the Court will give parties 6 months to a year before dismissing the case,
but this varies by jurisdiction.
If the need for some ground rules just involves the children, it is possible
to file a Suit Affecting the Parent Child Relationship and get temporary,
or even permanent, orders regarding the kids. These orders can establish
conservatorship, possession, child support, and provisions related to
medical insurance and uninsured medical expenses for the kids. This is
a good approach when the parents are separating, maybe for a long while,
but don’t want to file for divorce.
Regardless of which method a couple chooses, it is important to visit with
a good family lawyer about the issue before proceeding. One thing that
is important to remember is that in Texas, until you are divorced, you’re
still married. This simple maxim has a lot of important ramifications.
While you remain married, absent a marital property agreement, the parties
are still creating community property and debt. I’ve worked on cases
in which the parties were separated for many years and, when they finally
got around to filing for divorce, there were huge disputes regarding the
division of the property or debt that was accumulated during those years
of separation. Further, remember, while you’re separated, any infidelity
could be brought up later, if the parties don’t reconcile, during
the divorce trial as a reason the ‘faithful’ partner should
receive more than half of the community estate. While judges often ignore
these issues during the time the parties are separated, there’s
no guarantee they will.
There are other solutions to short-term and long-term separations, but
the bottom line is that, in Texas, parties wishing to formalize their
separation may have to be creative.